Kiparoglou v The Queen - [2021] SASC 2

Supreme Court of South Australia
(Criminal: Application)

KIPAROGLOU v THE QUEEN
[2021] SASC 2
Judgment of the Honourable Justice Parker
22 January 2021
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
This is an application for review of a bail decision.
The applicant is charged with the offences of: (i) disorderly or offensive behaviour; and (ii) loitering alleged to have been committed on 8 July 2020.
The applicant sought to vary his conditions of bail to remove the condition that he “will not leave the State for any reason without lawful permission under the Bail Act 1985”. Further, the applicant made an oral application under s 11(6) of the Bail Act 1985 for permission to leave the state for medical reasons.
Held, per Parker J, dismissing the application:
1. The inclusion of the mandatory words “it is a condition of every bail agreement” in the chapeau to s 11(6) clearly precludes the Court from removing the condition that the applicant will not leave the State for any reason without lawful permission under the Bail Act.
2. Permission for the applicant to travel outside of South Australia is refused.
Bail Act 1985 (SA) s 11(6); Liquor Licensing Act 1997 (SA) s 117A; Summary Offences Act 1953 (SA) ss 7(1)(a), 18(2), referred to.

KIPAROGLOU v THE QUEEN
[2021] SASC 2
KIPAROGLOU v THE QUEEN
Criminal: Application

PARKER J: This judgment confirms my reasons for refusing to vary the terms of a bail agreement and also refusing to grant permission to travel outside South Australia. While I provided brief oral reasons for these two decisions, in view of further contact from Mr Kiparoglou, I consider it appropriate to provide written reasons.
Background
On 2 October 2018, Mr Kiparoglou was issued an expiation notice by SA Police as he had allegedly driven at a speed of 113 km per hour in a 100 km per hour zone. He did not expiate the offence and thereby elected to be prosecuted. The matter was set down for trial on several occasions during 2020 but the trial did not proceed. Ultimately, Mr Kiparoglou applied by email to vacate the trial date set for 6 August 2020 on the basis that he had a serious medical condition which required surgery and would make him incapacitated to participate in a trial. A Magistrate refused the email application and indicated that Mr Kiparoglou would need to make a formal application to the Court supported by an affidavit and medical evidence.
At a subsequent directions hearing on 16 July 2020, the Magistrate directed the Registrar to contact Dr Gonabadi to ascertain whether she was aware of the reasons advanced by Mr Kiparoglou on 11 July 2020. The Registrar was also directed to ascertain whether Dr Gonabadi was prepared to appear via telephone at a directions hearing concerning the capacity of Mr Kiparoglou to attend a trial based upon his medical condition. Subsequently, on 31 July 2020, the Magistrate accepted that Mr Kiparoglou was likely to be incapacitated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kiparoglou v The Queen

Details

AGLC: Kiparoglou v The Queen [[2021]] SASC 2
Case: [2021] SASC 2
Decision Date: 22 January 2021

CaseChat Overview and Summary

In the case of Kiparoglou v The Queen, the appellant, Mr Kiparoglou, appealed against a decision of the District Court of South Australia which had refused his application for permission to travel interstate to seek medical treatment. The appellant argued that the Court should not have considered statements made by medical professionals, Dr Grewal and Dr Gonabadi, on the grounds that they contained confidential patient information. The appellant also contended that the solicitors acting for the doctors in the civil proceedings were not entitled to provide those statements to the Office of the Director of Public Prosecutions (ODPP). The legal issues before the court were whether the Court had the power to remove the condition imposed by s 11(6) of the Bail Act that a person cannot leave the State without permission and whether the power to grant permission to travel interstate should be exercised.

The court held that it was not necessary to decide whether the statements made by Dr Grewal and Dr Gonabadi should have been considered as they did not assist in deciding the questions before the Court. The court found that it had no power to remove the condition imposed by s 11(6) of the Bail Act, as the mandatory words “it is a condition of every bail agreement” precluded the Court from doing so. Therefore, the decision made by Magistrate Jackson on 31 July 2020 was clearly correct. While there was no power to remove the condition that Mr Kiparoglou not travel interstate without permission, it was a different question as to whether permission should be granted under s 11(6). Considering the minor nature of Mr Kiparoglou’s prior offences, his medical condition, and his belief that the treatment he sought was not available in South Australia, the court found that this would be an appropriate case to grant permission to travel outside South Australia under s 11(6).

The court rejected the appellant's contention that he should be granted unlimited permission to travel wherever and whenever he wanted. Instead, the court held that a bail authority should be informed in advance of the reasons for and details of proposed interstate travel so that it may determine whether it is appropriate to grant consent. In this case, it would be necessary for Mr Kiparoglou to have made an appointment at a particular time with a named medical specialist at a particular location. The court also found that it was not necessary for Mr Kiparoglou to have identified the specialist whom he wished to consult and have a general practitioner provide a referral addressed to that person, as the specialist would almost certainly require Mr Kiparoglou to have made an appointment and not attend unannounced.

The court concluded that it was not necessary to decide whether the contention by Mr Kiparoglou that the Court should not receive the statements made by Dr Grewal and Dr Gonabadi as they contained confidential patient information was soundly based. It was also not necessary to decide whether the solicitors acting for the two doctors in the civil proceedings were entitled to provide those statements to the ODPP. It was unnecessary to decide those two issues because the statements did not assist the court in deciding the questions before it. Therefore, the court did not take into account the content of the statements made by Dr Grewal and Dr Gonabadi. The court granted permission for Mr Kiparoglou to travel interstate for medical treatment, subject to the conditions set out in the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was not necessary for me to decide whether the contention by Mr Kiparaglou that the Court should not receive the statements made by Dr Grewal and Dr Gonabadi as they contained confidential patient information is soundly based. It was also not necessary for me to decide whether the solicitors acting for the two doctors in the civil proceedings were entitled to provide those statements to the ODPP. It was unnecessary to decide those two issues because the statements did not assist me to decide the questions before the Court, i.e. whether the Court had power to remove the requirement imposed by s 11(6) of the Bail Act and whether the power to grant permission to travel interstate should be exercised. Thus, I did not take into account the content of the statements made by Dr Grewal and Dr Gonabadi.Conclusion It is absolutely clear that this Court has no power to remove the condition imposed by s 11(6) of the Bail Act that a person who is subject to a bail agreement cannot leave the State for any reason without having first obtained permission in accordance with that provision. The inclusion of the mandatory words “it is a condition of every bail agreement” in the chapeau to s 11(6) precludes the Court from removing this condition. Accordingly, the decision made by Magistrate Jackson on 31 July 2020 was clearly correct. While there is no power to remove the condition that Mr Kiparaglou not travel interstate without permission, it is an entirely different question as to whether permission should be granted under s 11(6). The two alleged offences to which the bail agreement relates are summary offences of a public order nature. Mr Kiparaglou’s prior offending has been minor and dates back many years. Apart from the one current allegation of a breach of a bail condition, he does not have a history of non-compliance with court orders. In light of those several matters combined with his medical condition, subject to what follows, this would be an appropriate case to grant permission to travel outside South Australia under s 11(6). I rejected Mr Kiparaglou’s contention that he should be granted unlimited permission to travel wherever and whenever he wanted. A bail authority should be informed in advance of the reasons for and details of proposed interstate travel so that it may determine whether it is appropriate to grant consent. In this case it would be necessary for Mr Kiparaglou to have made an appointment at a particular time with a named medical specialist at a particular location. The same principle would apply if he is to undergo surgery. If he supplies the required information, and in the absence of any other disqualifying factor, I see no reason why an appropriate authority should not grant permission. I see no reason why Mr Kiparaglou cannot use the internet and telephone to locate a specialist who may be able to provide the treatment he seeks, although the limitations on advertising by medical practitioners may make that task more difficult than it would be in the USA. I also understand that a medical specialist would not agree to see or treat Mr Kiparaglou without a referral to him or her from a general practitioner.[2] The practical result of this requirement is that Mr Kiparaglou will need to have identified the specialist whom he wishes to consult and have a general practitioner provide a referral addressed to that person. The specialist would almost certainly require Mr Kiparaglou to have made an appointment and not attend unannounced. For these reasons, I do not accept the contention of Mr Kiparaglou that the requirement that he provide details of his appointment will prevent him from seeking the treatment that he believes he needs. [2] I consider that this requirement is so well established that I may take judicial notice of its existence.

Ratio Decidendi

Legal Principle Established

Mr Kiparaglou produced a copy of an email that he had sent to an interstate medical specialist asking whether he conducted surgery using ultrasonic equipment. He received a negative answer. I have no reason to disbelieve his statement that he has contacted other specialists with the same result.Consideration Subsequent to the hearing on 15 January 2021, the ODPP advised my chambers that they no longer maintained the position that the police lacked power to grant permission to travel interstate. It is doubtful that material of the nature produced by Dr Cantor could be published under the restrictions upon advertising that apply to Australian medical practitioners. If so, that may make it more difficult for Mr Kiparoglou to identify an Australian specialist who provides such treatment. Be that as it may, I have no expert evidence to show that Mr Kiparoglou would benefit from treatment of the type provided by Dr Cantor. Nevertheless, the report of Dr Gonabadi establishes that he suffers from a serious medical condition. I accept that Mr Kiparoglou genuinely believes that the treatment described by Dr Cantor would assist him. He also believes that such treatment is not available in South Australia. It is not necessary for present purposes to decide if either of those beliefs is correct. Those are matters for expert medical advice. It was not necessary for me to decide whether the contention by Mr Kiparaglou that the Court should not receive the statements made by Dr Grewal and Dr Gonabadi as they contained confidential patient information is soundly based. It was also not necessary for me to decide whether the solicitors acting for the two doctors in the civil proceedings were entitled to provide those statements to the ODPP. It was unnecessary to decide those two issues because the statements did not assist me to decide the questions before the Court, i.e. whether the Court had power to remove the requirement imposed by s 11(6) of the Bail Act and whether the power to grant permission to travel interstate should be exercised. Thus, I did not take into account the content of the statements made by Dr Grewal and Dr Gonabadi.Conclusion It is absolutely clear that this Court has no power to remove the condition imposed by s 11(6) of the Bail Act that a person who is subject to a bail agreement cannot leave the State for any reason without having first obtained permission in accordance with that provision. The inclusion of the mandatory words “it is a condition of every bail agreement” in the chapeau to s 11(6) precludes the Court from removing this condition. Accordingly, the decision made by Magistrate Jackson on 31 July 2020 was clearly correct. While there is no power to remove the condition that Mr Kiparaglou not travel interstate without permission, it is an entirely different question as to whether permission should be granted under s 11(6). The two alleged offences to which the bail agreement relates are summary offences of a public order nature. Mr Kiparaglou’s prior offending has been minor and dates back many years. Apart from the one current allegation of a breach of a bail condition, he does not have a history of non-compliance with court orders. In light of those several matters combined with his medical condition, subject to what follows, this would be an appropriate case to grant permission to travel outside South Australia under s 11(6).